This is an action under the Warsaw Convention to recover
damages for wrongful death arising from the fall of Angelo M.
D'Alessandro from a mobile passenger lounge vehicle, which is an
elevated bus, at Mexico City airport on August 19, 1993. Mr.
D'Alessandro was a passenger boarding American Airlines Flight
1054 from Mexico City to Dallas, Texas. He was the last
passenger to board the mobile lounge, which was used to
transport passengers from the terminal to the aircraft parked
some distance away, and which was designed so that passengers
could walk directly from the terminal gate to the mobile lounge,
and directly from the mobile lounge onto the aircraft, without
having to use stairways. After boarding, Mr. D'Alessandro stood
by the left door of the mobile lounge he had entered. While he
was being transported, Mr. D'Alessandro fell through the door of
the mobile lounge, which somehow opened, and he plunged
approximately fifteen feet to the tarmac, sustaining severe
injuries that resulted in his death approximately six weeks
later.

Mr. D'Alessandro, a New Jersey resident, had been the Chairman
and Chief Executive Officer of Alexander Consulting Group, a
subsidiary of Alexander and Alexander Services, Inc., at the
time of the accident. Defendant American Airlines, Inc.
("American") is a Delaware corporation with its principal place
of business in Texas. American does not dispute that the Warsaw
Convention applies and that American is responsible for the
operation of the mobile lounge, including the conduct of the
local airport authority, Aeropuertos y Servicios Auxiliaries,
which provided the lounge, and its driver, Reynaldo Paz Ramirez.
An American passenger service representative, Sergio Lopez, also
was on the lounge when the accident happened.

American moves for partial summary judgment on the ground that
there is no evidence that its conduct and the conduct of its
agents and representatives rose to the level of culpability
required under Article 25(1) of the Warsaw Convention, and
therefore the damages that may be recovered are limited to
$75,000. American also moves in limine to preclude plaintiff
from offering evidence of Mr. D'Alessandro's lost earnings or
from presenting the testimony of a proposed witness, Michael J.
Corey, to establish Mr. D'Alessandro's future earning capacity.

Limitation of Damages Under Warsaw Convention

Article 25(1) of the Warsaw Convention, as applicable at the
time of the incident, provides, according to the official
English translation of the governing French text, that the
$75,000 limitation on damages does not apply "if the damage is
caused by [the carrier's] wilful misconduct or by such default
on his part as, in accordance with the law of the court to which
the case is submitted, is considered to be the equivalent of
wilful misconduct." Although American argues that "wilful
misconduct" is a mistranslation of "dol" in the French text, and
that "dol" requires the equivalent of intentional conduct with
the intent to cause injury, American concedes that its argument
has been rejected by the Second Circuit. Brink's Ltd. v. South
African Airways, 93 F.3d 1022, 1027-29 (2d Cir. 1996), cert.
denied, 519 U.S. 1116, 117 S.Ct. 959, 136 L.Ed.2d 845 (1997)
(law of forum jurisdiction, not an international standard of
"dol", determines what
conduct constitutes wilful misconduct that deprives a carrier of
limited liability protection).

Brink's also held that, in light of a recent Supreme Court
decision, Zicherman v. Korean Air Lines Co., 516 U.S. 217, 116
S.Ct. 629, 133 L.Ed.2d 596 (1996), the Second Circuit's previous
holdings that the law of the forum in cases arising under the
Warsaw Convention is federal common law were no longer viable.
Instead, the Circuit held, wilful misconduct in a case arising
under the Warsaw Convention must be determined by the law that
would govern in the absence of the Warsaw Convention, i.e.,
the law of the forum state, New York, including its choice of
law rules. 93 F.3d at 1029-30. American's argument that a still
more recent Supreme Court decision, El Al Israel Airlines, Ltd.
v. Tsui Yuan Tseng, 525 U.S. 155, 119 S.Ct. 662, 142 L.Ed.2d
576 (1999), demonstrates that Brink's has been implicitly
overruled is erroneous. Tseng dealt with whether a passenger
who was not entitled to recover for personal injury under the
Warsaw Convention could nevertheless recover damages under state
tort law, and it held that recovery on a state-law cause of
action was precluded as long as the incident occurred during the
flight or in the course of embarking or disembarking, which is
the scope of the Convention's coverage for personal injury to
passengers. Tseng reaffirmed Zicherman's recognition that
the Warsaw Convention specifically left certain issues to the
law of the forum, stating: "the Court in Zicherman determined
that Warsaw drafters intended to resolve whether there is
liability, but to leave to domestic law (the local law
identified by the forum under its choice of law rules or
approaches) determination of the compensatory damages available
to the suitor." Tseng, 525 U.S. at 170, 119 S.Ct. 662, citing
Zicherman, 516 U.S. at 231, 116 S.Ct. 629 (emphasis in
original). Nothing in Tseng nullifies Brink's' holding that
the specific reference in the text of Article 25(1) to the law
of the court hearing the case constitutes an explicit direction
to apply local law which, under Zicherman, is properly state
law if no federal statute is applicable.

The next question is what law a New York State court would
apply. New York courts first look to determine if a true
conflict of law issue exists. Unless it appears that other
jurisdictions that have a significant interest in the matter in
controversy have materially different principles than a New York
court would apply, there is no occasion to undertake a conflict
of law analysis. Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir.
1998). New York employs a "flexible approach" of seeking "to
apply the law of the jurisdiction with the most significant
interest in, or relationship to, the dispute." Brink's, 93
F.3d at 1030, citing Babcock v. Jackson, 12 N.Y.2d 473,
481-82, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963). The focus in
tort cases is upon which jurisdiction has the most significant
interest in the particular issue to be determined. Schultz v.
Boy Scouts of America, Inc., 65 N.Y.2d 189, 197, 491 N.Y.S.2d 90,
480 N.E.2d 679 (1985). New York courts distinguish in tort
cases between "conduct-regulating laws" and "loss-allocating
rules." Brink's, 93 F.3d at 1031; Hitchcock v. Woodside
Literary Agency, 15 F. Supp.2d 246, 251 (E.D.N.Y. 1998); Cooney
v. Osgood Mach., Inc., 81 N.Y.2d 66, 72, 595 N.Y.S.2d 919,
612 N.E.2d 277 (1993). As a general rule, the law of the place where
the tort occurred is applied to conduct-regulating laws, since
that jurisdiction has the greatest interest in regulating
conduct inside its borders. "If post-event remedial rules, or
loss-allocating rules, are at issue, `other factors are taken
into consideration, chiefly the parties' domiciles.'" Brink's,
93 F.3d at 1031, quoting Cooney, 81 N.Y.2d at 72, 595 N.Y.S.2d 919,
612 N.E.2d 277.
If a loss allocation rule is at issue, and both plaintiff and
defendant share a common domicile, the law of that domicile
generally is applied. Cooney, 81 N.Y.2d at 73, 595 N.Y.S.2d 919,
612 N.E.2d 277.

American argues that, under New York choice of law principles,
the law of Mexico is applicable. Plaintiff argues that "United
States law" applies. Plaintiff further argues that the United
States has a greater interest than Mexico in determining a
dispute between its domiciliaries. Plaintiffs argument is
rejected as an attempt to resurrect a federal common law for
Warsaw Convention cases in contravention of Brink's. The
proper comparison is between the laws of the particular
jurisdictions that have an interest in the issue, not between
countries. Thus in Brink's, the Circuit compared the interests
of New York and South Africa, not the United States and South
Africa, in deciding that a New York court would apply South
African law to determine if theft by the South African carrier's
employee in South Africa constituted wilful misconduct
attributable to the carrier. 93 F.3d at 1031-32. As will be
seen, the New York courts would hold that there is no true
conflict between the law of New York and the law of Mexico.

Under New York law, wilful misconduct in a Warsaw Convention
case is not limited to intentional wrongdoing. In Goepp v.
American Overseas Airlines, 281 A.D. 105, 117 N.Y.S.2d 276
(1st Dep't 1952), aff'd, 305 N.Y. 830, 114 N.E.2d 37, cert.
denied, 346 U.S. 874, 74 S.Ct. 124, 98 L.Ed. 382 (1953), the
court noted the absence in the case of "necessary elements to
establish wilful misconduct," i.e., no proof that defendant
interpreted safety regulations in bad faith or "with any
intimation that it was incorrect, or that it was arrived at, or
effectuated, in a disregard of the possible consequences." Id.
at 111, 117 N.Y.S.2d 276. The court approved the trial court's
charge that wilfulness required "a conscious intent to do or
omit doing the act from which harm results to another, or an
intentional omission of a manifest duty. There must be a
realization of the probability of injury from the conduct, and a
disregard of the probable consequences of such conduct." Id.
Goepp then quoted with approval a treatise on air law which
defined wilful misconduct under the Warsaw Convention as "`a
deliberate act or omission which the person doing or omitting —
(i) knows is a breach of his duty in the circumstances; or (ii)
knows is likely to cause damage to third parties; or (iii) with
reckless indifference does not know or care whether it is or is
not a breach of his duty or is likely to cause damage.'" Id.

Mexican law is not materially different.*fn1 American's
expert asserts that Mexico, as a civil law jurisdiction, would
apply "dolo", which is the same as "dol", as that term is
generally understood in civil law countries and, according to
the expert, requires an intent to cause injury. The expert could
not find any cases or other authorities under Mexican law that
specifically dealt with the Warsaw Convention. Also, the
affidavit does not address how Mexican law treats intentional
conduct that would be characterized as reckless in United States
jurisdictions. Most critically, American's expert omitted the
crucial information that Mexico (unlike the United States)
became a party in 1963 to the 1955 Hague Protocol, which in
Article XIII abandoned "dol" entirely by amending Article 25 of
the Warsaw Convention to provide that the limitation on
liability "shall not apply if it is proved that the damage
resulted from an act or omission of the carrier, his servants or
agents, done with intent to cause damage or recklessly and with
knowledge that damage would probably result." The U.S. State
Department interprets this provision of the Hague Protocol as
being identical to the prevailing definition in common-law
jurisdictions of "wilful misconduct," and specifically as that
term has been defined in jury charges in New York State courts
and in Second Circuit caselaw (which definition, as noted above,
has also been adopted in New York). The State Department
explains that the amendment was designed to overcome confusion
and different connotations that had arisen between civil and
common law systems by adopting the definition of conduct that
corresponded to wilful misconduct in the latter jurisdictions.
S.Exec. Rpt. No. 105-20, Montreal Protocol No. 4, at pp. 15,
47-49, 52-53.

In addition, even if Mexican law were different from that of
New York, it is likely that a New York court would apply New
York law. Although plaintiff and defendant do not share a common
domicile, a New York court would consider it significant that
the law of both plaintiffs and defendant's domiciles is the same
and is the same as New York's (or, at least, American does not
contest that they are the same). Where the law of the domiciles
of plaintiff and defendant are the same, and the accident occurs
in a third state, the common law of the domiciles of the parties
is applied if the ride is one of loss allocation. Tkaczevski v.
Ryder Truck Rental, Inc., 22 F. Supp.2d 169, 173-74 (S.D.N.Y.
1998). "Under New York's choice of law rules, when conflicting
rules concern the allocation of loss rather than the regulation
of conduct, the locus jurisdiction has at best a minimal
interest in determining the right of recovery or the extent of
the remedy." Pescatore v. Pan American World Airways, Inc.,
97 F.3d 1, 13 (2d Cir. 1996) (internal quotation marks omitted)
(declining to apply Scottish law to determine whether damages
for loss of society and grief were available to Ohio plaintiff
in Lockerbie disaster). New York includes among its
loss-allocation ...

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